Staking Out New Ground:

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2007-2008 Winter

Junior Professors Contribute Innovative Scholarship

THE SEVEN OUTSTANDING Brooklyn Law School professors profiled here are coming into their own as legal scholars. Their scholarship— in criminal law, scientific evidence, tax havens, international law, constitutional history, the secondary mortgage market, and the taking of private property — is staking out new ground. Influenced by a range of disciplines, these scholars are publishing innovative law review articles and books brimming with ideas that are vigorously debated by their colleagues and increasingly cited by judges.

Michael Cahill

While most of Professor Michael Cahill's teaching and scholarship is dedicated to criminal law, his work also encompasses health law. As he was earning a dual degree in law and public policy at the University of Michigan, he collaborated with professors in both these areas on research and writing projects that turned into career pursuits. Cahill explores the two areas with a similar approach. "Rather than claiming some special ability on my part to make the 'right' decisions about complicated issues, much of my work tries to provide a structure or perspective to both guide and monitor the people in the field who must make decisions that can be unavoidably difficult, often because of limited resources," he says.

In the field of health law, for instance, he focuses on the financial aspects of the managed care business, which often struggles to reconcile the needs of current patients with the needs of others who may need access to health resources in the future. He serves as a faculty member of the Center for Health, Science and Public Policy at Brooklyn Law School. Through the Center's relationship with Mount Sinai School of Medicine, Cahill often gives presentations to medical students on issues that involve law and medicine. "Given that we only have a certain amount of money, the question is how do we satisfy the many needs of the patient population?" he asks. "I want to offer a framework that creates a transparent process to enable the right decision-makers to make unbiased judgments."

His work in the field of criminal law focuses on a similar issue: providing guidance to prosecutors, police, and policy-makers who make decisions every day about how to deal with crime. "Because of practical constraints — jail space, personnel, resources, incomplete information, unavailable evidence — we can't identify and punish everyone who deserves to be punished," he explains. "Unfortunately, the existing theoretical literature on criminal law provides very little guidance about what to do if we can't do it all."

Criminal justice theorists, says Cahill, have a blind spot when it comes to resource problems. His scholarship, which seeks to fill that void, includes the recent publication of a book, Law Without Justice, which explores unquestioned features of the U.S. criminal justice system that prevent full implementation of the theory of "just deserts." He co-authored the book with preeminent criminal law scholar Paul Robinson, who recruited him in law school to help revamp the state of Illinois' criminal code. One of the main goals of criminal law is retribution — punishing past wrongs and giving criminals what society has decided they deserve for breaking the law, explains Cahill. But when only some crimes are punished fully, and similar ones lead to reduced punishment via plea bargains or dismissal, society is failing to live up to that goal. The system can also exact punishment unfairly in the opposite direction, imposing punishment that clearly exceeds the moral gravity of a person's offense.

Cahill's most recent article (see abstract) argues that the only way to make retribution effective is to adopt an approach that views it as a goal to maximize, rather than an all-or-nothing moral obligation. "Only if we think of retribution as a goal, rather than a duty — which is the prevailing philosophical view — can we examine how to make decisions that are constrained by very real resource limitations," he says. "It can be good for criminal law scholars to work with philosophical theories, but philosophy is not the same as law: I want to figure out how to develop a theory we can actually turn into legal rules."

In the future, Cahill hopes to address the issue of imposing liability for multiple crimes based on a single act or course of conduct. For example, when one burns down a house, injuring or killing someone, the criminal code might authorize punishment for arson, property damage, reckless endangerment, battery, and/or murder, among other things. "I want to work out a satisfactory explanation for when and how it's acceptable to punish for more than one offense in these cases," he says. "It may not be fair to prosecute all available offenses and add all the punishments together, but then, how do we decide to ignore one crime and prosecute another?"

Michael Cahill | Abstract

Real Retribution

There are two commonly recognized "theories" of criminal law: Utilitarianism ("deterrence theory") sees criminal law's purpose as preventing future harms, while retributivism ("desert theory") sees its purpose as punishing past wrongs. These two theories are fundamentally different in scope, however: utilitarianism provides a complete theory of criminal law, while retributivism does not.

The deterrence view offers a comprehensive vision that can determine both the proper content of criminal law and the best means for enforcing it. It seeks in all cases, and at all stages of the process, to minimize or prevent social harms (in the most cost-effective way). The desert view, on the other hand, apparently speaks only to the criminal law's design, not its implementation. Retributive theory specifies what moral wrongs to punish, and how much to punish them, in the abstract. Yet it says nothing about how the law's enforcers (police and prosecutors) should make the tradeoffs necessary to "do" criminal justice in the real world, where various constraints prevent imposition of the full, deserved punishment on every offender.

This article explores and evaluates the options for a real-world legal theory of retributive justice. It concludes that perhaps the only way to make retribution real would be to adopt the approach of "consequentialist retributivism," which sees desert-based punishment as a goal to maximize, rather than (as other approaches demand) a categorically binding moral duty or commitment.